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TMI Blog2021 (3) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered whether the property is a residential property or a commercial property. Assessing Officer therefore, held that the assessee has fulfilled the conditions laid down in section 54F of the Act and is eligible for deduction. The tribunal in its order dated 31.07.2015 has held that the Assessing Officer had all the information and had made enquiries with regard to claim of exemption under Section 54F of the Act. It was further held that the Assessing Officer was of the view that one of the properties was let out for commercial purposes. Therefore, the assessee was eligible for deduction under Section 54F of the Act was one of the possible views which cannot be termed as unlawful or illegal. The aforesaid finding in our view does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal briefly stated are that the assessee is an individual who filed income tax return for the Assessment Year 2005-06 on 20.07.2005 declaring an income of ₹ 2,20,829/- under the head income from salary, house property and other sources. The return was processed under Section 143(1) of the Act. Thereafter, annual information return information was received by the department that the assessee has sold immovable properties and the return of income did not reflect the details of the same. The Assessing Officer thereafter re opened the case by issuance of notice under Section 148 of the Act. The assessee filed the reply requesting the Assessing Officer to treat the return of income filed on 20.07.2005 as one filed in response to the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that even an incorrect assumption of facts or incorrect application of law will satisfy the requirement of order being erroneous. In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in 'MALABAR INDUSTRIAL CO. LTD. VS. COMMISSIONER OF INCOME TAX', (2000) 109 TAXMAN 66 (SC) and a division bench decision of this court in 'COMMISSIONEROF INCOME-TAX, CENTRAL CIRCLE, BANGALORE VS. M.J. SIWANI', (2014) 46 TAXMANN.COM 170 (KARNATAKA). 5. On the other hand, learned counsel for the assessee submitted that the usage of property has to be considered in determining whether property is a residential property or a commercial property. It is further submitted that the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to take note of the relevant extract of Section 263 of the Act, which reads as under: 263. Revision of orders prejudicial to revenue (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he, may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. 7. Thus, from close scrutiny of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees Housing Society Layout was sold on 08.09.2004 for a consideration of ₹ 32,31,500/-. The assessee invested the entire sale consideration in construction of new residential Property at J.P.Nagar, Bangalore. The assessee at the time of the sale of aforesaid two sites had a residential property at Sulthanpalya which was occupied by the assessee for the purposes of residence and another point at High Point which was let out as office space. All the aforesaid facts were noticed by the Assessing Officer during the course of assessment proceedings. Thus, at the time of sale of property, the assessee owned only one residential property as the usage of the property has to be considered whether the property is a residential property or a com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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